Bockari v. J.P. Morgan Chase Bank

Filing 21

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 09/21/16 ORDERING that plaintiff's 16 Motion for Extension of Time is GRANTED; plaintiff's 17 Motion to Appoint Counsel is DENIED; and RECOMMENDING that plaintiff's 15 Second Amended Complaint be dismissed without leave to amend and the case be closed. Referred to John A. Mendez; Objections to these F&Rs due within 14 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK A. BOCKARI,

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Plaintiff,

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No. 2:13-cv-2603-JAM-EFB PS

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

J.P. MORGAN CHASE BANK,

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Defendant.

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This court previously granted plaintiff’s request to proceed in forma pauperis, but

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dismissed plaintiff’s complaint with leave to amend pursuant to 28 U.S.C. § 1915(e)(2).1 ECF

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No. 8. His original complaint appeared to allege that defendant was in some unclear manner

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responsible for money disappearing from plaintiff’s bank account. See generally ECF No. 1. The

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dismissal order noted that the lack of clarity in the complaint left unclear whether the court had

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subject matter jurisdiction. The complaint failed to specify any claims for relief and did not

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allege diversity of the parties. Id. at 3. Accordingly, it was dismissed with leave to amend to

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provide plaintiff an opportunity to allege, if he could, “a basis for this court’s jurisdiction, as well

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as a cognizable legal theory and sufficient facts in support of that cognizable legal theory.”

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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Plaintiff subsequently filed an amended complaint alleging that defendant used fraudulent

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cashier’s checks to withdrawal $20,000 from his bank account without his authorization. ECF

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No. 9 at 1. Again, plaintiff failed to plead a specific cause of action. Nor did he allege facts

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establishing this court’s subject matter jurisdiction over this matter. Accordingly, the amended

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complaint was dismissed with leave to amend to provide plaintiff another opportunity to allege a

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basis for this court’s jurisdiction, as well as a cognizable legal theory supported by sufficient

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facts.
Plaintiff has now filed a second amended complaint2 (ECF No. 15), as well as a motion

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for appointment of counsel (ECF No. 17). For the reasons explained below, plaintiff’s motion for

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appointment of counsel is denied and it is recommended that plaintiff’s second amended

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complaint be dismissed without leave to amend.

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I.

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Appointment of Counsel
28 U.S.C. § 1915(e)(1) authorizes the appointment of counsel to represent an indigent

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civil litigant in certain exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); Richards v.

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Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional circumstances exist,

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the court must evaluate (1) the plaintiff’s likelihood of success on the merits; and (2) the ability of

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the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Terrell, 935 F.2d at 1017.

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As explained below, plaintiff has failed to establish this court’s jurisdiction and therefore

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the second amended complaint must be dismissed without leave to amend. Accordingly, there is

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no likelihood of success on the merits and plaintiff’s motion is therefore denied.

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II.

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Second Amended Complaint
Plaintiff’s second amended complaint alleges that he deposited almost $29,000 into a

deposit account at one of defendant’s branches. ECF No. 15 at 1. He subsequently wrote four

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Plaintiff was granted thirty days to file a second amended complaint. ECF No. 14 at 5.
He filed his second amended complaint after the thirty-day deadline, but filed a motion requesting
the court to accept it as timely. ECF No. 16. That request for an extension of time is granted.
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cashier’s checks to himself, totaling $20,000. Id. at 1-2. Plaintiff claims that he returned to the

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bank on a later date to cash the checks, but the teller did not give him the total amount he was

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owed. Id. at 2. He claims that he was unaware that he did not receive the right amount due to

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confusion “from a brain injury and stroke.” Id. He further contends that “defendant breached my

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trust by fraudulently withdrawing $20,000 from my deposit account.” Id. at 1.

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As previously explained to plaintiff, although pro se pleadings are liberally construed, see

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be

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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

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plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

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upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing

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Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only
those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,
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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiff’s complaint once again fails to establish this court’s subject matter jurisdiction.

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Plaintiff contends that this case presents a federal question because defendant committed bank

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fraud in violation of 18 U.S.C. § 1344. That provision, however, is a criminal statute that does

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not provide a private cause of action. Schneider v. Bank of America, N.A., 2012 WL 761975, at

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*8 (E.D. Cal. Mar. 6, 2012); McCracken v. Portland General Elec., 2011 WL 4036158, at *6 (D.

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Or. July 19, 2011).

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Plaintiff’s complaint also references language contained in 12 U.S.C. § 504.3 Section 504,

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which is part of the Federal Reserve Act, provides for civil money penalties against “any member

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bank” and “any institution-affiliated party” that violates certain provisions of Title 12 or related

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regulations. 12 U.S.C. § 504. Plaintiff, however, does not specify any provision that defendant

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allegedly violated. Moreover, that section does not create a private right of action. Plaintiff, as

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an individual, cannot maintain a claim under this section, which provides that any imposed civil

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penalties shall be assessed and collected by either the Comptroller of the Currency or the board of

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Plaintiff’s second amended complaint actually cites to 5 U.S.C. 504(a)(1), which
concerns awarding fees in relation to adversary proceedings before a government agency. As that
statute has no relevance to the factual allegations, the court assumes plaintiff intended to cite to
12 U.S.C. 504.
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a State member bank, and deposited into the Treasury. 12 U.S.C. 504(e) and (g). Accordingly,

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plaintiff fails to state a federal claim.

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Moreover, plaintiff fails to allege facts showing that he and defendant are citizens of

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different states, nor does he demonstrate that the amount in controversy exceeds $75,000. In fact,

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plaintiff only alleges that defendant fraudulently took $20,000 from him. Thus, jurisdiction is

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lacking under 28 U.S.C. § 1332. Accordingly, plaintiff has failed to establish the court’s

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jurisdiction and the second amended complaint must be dismissed.

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The dismissal should be without further leave to amend. On two separate occasions, this
court has instructed plaintiff of his obligation to establish this court’s jurisdiction and was

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provided an opportunity to do so. He has been unable to allege any basis for subject matter

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jurisdiction and has yet to identify a specific cause of action.4 Accordingly, the court finds that

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further leave to amend would be futile. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)

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(while the court ordinarily would permit a pro se plaintiff to amend, leave to amend should not be

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granted where it appears amendment would be futile).

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III.

Conclusion

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 16) is granted; and

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2. Plaintiff’s motion for appointment of counsel (ECF No. 17) is denied.

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Further, it is RECOMMENDED that plaintiff’s second amended complaint be dismissed

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without leave to amend and that the Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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Plaintiff has also filed a third amended complaint. That complaint contains substantially
similar allegations as those found in the second amended complaint, and also fails to adequately
allege a federal claim or otherwise establish this court’s jurisdiction.
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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 21, 2016.

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